RADHEY SHYAM Vs. A D J

JUDGEMENT

(1.) Heard Sri Siddharth Verma, learned counsel for the petitioners and Sri R.B. Tripathi, learned counsel for the contesting respondent. By this petition, the petitioners, who are defendants in a suit filed by contesting respondents, have challenged the order dated 13th December, 2001, passed by Special Judge, Court No. 5, Deoria in Civil Appeal No. 46 of 1996, by which application No. 43 Ka2 preferred by the plaintiff-respondent for amendment of plaint has been allowed on payment of cost of Rs. 200/-.

(2.) The contention of learned counsel for the petitioners is that the suit of the plaintiff was dismissed by the trial Court and that the amendment has been applied for at a very belated stage, during the pendency of the appeal. It has further been submitted that during the appeal earlier an application was filed by one of the plaintiff for similar amendment in the plaint, which was got dismissed as not pressed, therefore, a fresh application for that purpose was not maintainable.

(3.) Per contra, the submission of learned counsel for the contesting respondent is that earlier the defendant had set up a case in the written statement that the property in dispute was settled by Raja Awadhesh Pratap in the year 1972 whereas later, by way of amendment, a plea was taken that the settlement was made on 10th March, 1951 in favour of the defendant, who were Radhey Shyam and his wife Chandrawati. It has been submitted that in the year 1951, Chandrawati was not married to Radhey Shyam, therefore, the alleged settlement was completely bogus and fraudulent and, therefore, in order to decide the real controversy in the matter, an amendment of the plaint was sought for by introducing a plea that on 10th March, 1951 i.e. the date of the alleged settlement, Radhey Shyam and Chandrawati were not married to each other. It has further been submitted that the amendment, which had been sought for, does not change the nature of the case and that the earlier rejection of the amendment application as not pressed, would not bar the subsequent application by principles of res-judicata.